CH. MUSHTAQ AHMAD KHAN, J. -Through this Constitution Petition, It.
Col. (Retd) Ijaz Ali Khan, the petitioner before this court has, challenged the I order dated 25.7.1991 passed by the leamed Guardian Judge, Rawalpindi whereby \ his application under Section 25 of the Guardian and Wards Act, seeking restoration of custody of his three minor children, out of whom two are daughters and one is the son, was dismissed and the order dated 1.2.1992, whereby the leamed Addl: District Judge, Rawalpindi dismissed his appeal Hied against the order referred to above.
2. Briefly stated facts of the case giving rise to this constitutional petition are that the petitioner who is Yousafzai by caste and respondent No. 1 who is Khattak were married on 24.10.1976. Out of the wedlock three children were bom Sadaf Ijaz a daughter was bom on 2.4.1978, Wasaf Ijaz, a daughter was born on 30.10.1979 and Fawad Ijaz a son was bom on 2.11.1981x Both the spouses as well as their children beside, a living in Pakistan, have also lived in "Abudahbi" for a quite number of years where the petitioner had been appointed as a Counsellor in the Pakistan Embassy. They came back to Pakistan in July 1987. After they came back to Pakistan, it appears that some rift had developed amongst the spouses which was tried to be settled through good offices of Mst. Hajran who is a Swiss lady and is married to the maternal uncle of the petitioner. Consequently a document of settlement of dispute between the spouses which has been placed on the record of this writ petition at page 114 and is Ex. Dl, on the record of the lower court, is reproduced as under: 29 July 1988 "Both Ijaz and Shaheen agree in the presence of Hajran Mami that:
1. Ijaz and Shaheen want separation.
2. Shaheen will be paid Rs. 1500/- (Rupees fifteen hundred only) per month by Ijaz when Shaheen finally leaves Ijaz's house and takes permanent residence at her own anywhere also. This amount of Rs. 1500/- (Rupees fifteen hundred only) will be the monthly subsistence cum maintenance allowance of Shaheen and children.
3. Should Shaheen decide not to leave Ijaz's house, she (Shaheen) could live in Ijaz's house provided:-
(a) It is a separation between the husband and wife. i.e Ijaz and Shaheen and enforced as such in every respect.
(b) Ijaz shall not pay the above mentioned subsistence cum maintenance allowance of Rs. 1500/- per month to Shaheen instead Ijaz shall be responsible and pay the costs of Shaheen's maintenance and children education and all allied expenses.
(c) Shaheen shall not repeat not interfere m die domestic and all other affairs pertaining to Ijaz, Ijaz's family members, Ijaz's new wife and her family Ijaz friends and acquaintances and any other matter directly or indirectly related to Ijaz.
4. The children shall not be taken out of house by Shaheen without the prior consent of Ijaz."
The dispute appears to have not come to an end even thereafter and as per allegation of petitioner the respondent No. 1 left his house, when the petitioner was posted at Wah and was living with respondent No. 1 and his children in House No. I6 Gul Nastar Road Wah. After going away from the house of the petitioner, she filed a suit seeking dissolution of marriage as well as a suit for grant of maintenance to the minors. The marriage between the parties was dissolved by the learned Judge Family Court vide judgment and decree dated 16.12.1990 on the ground of Khula. This order was challenged by the petitioner in Writ Petition No. 388 of 1991. It was dismissed by this court, hence, the judgment and decree passed by the learned Judge Family Court has been upheld. A decree for payment of maintenance to the minors was also passed on 5.8.1991. This decree was challenged in appeal, filed by the petitioner which has also been dismissed by the learned District Court Rawalpindi vide judgment and decree dated 10.5.1993. The petitioner has not paid any amount of maintenance to the minors, in pursuance of the decree for grant of maintenance passed in favour of the minors, on the plea that prior to the filing of the application for a grant of maintenance, he had sent some amount to the minors towards maintenance through money order which was refused and, therefore, thereafter the petitioner did not sent any amount of maintenance to the minors. The petitioner filed an application under Section 25 of the Guardian and Wards Act, 1980 seeking restoration of the custody of the minor children on 2.1.1990. This application was contested by the respondent No. 1 on the ground that it is in the welfare of the minors to remain in her custody and, therefore, the application is liable to be dismissed.
3. On the basis of pleadings of the parties, the learned trial court settled the following issues:
1. Whether it is in the welfare of the minors to be given in the custody of the applicant?
2. Order.
4. In support of his contentions, the petitioner produced Atta Muhammad as PW1 who has deposed that he has been going to the house of the petitioner to teach Holy Quran to the minor children. He has admitted in cross- examination that the petitioner was his commanding officer at Wah Cantt, therefore, he used to go to his house for the purpose of teaching of Holy Quran to the minor children of the petitioner. Naseer Muhammad PW2 is the brother-in- law of the petitioner who has stated that he has been going to the house of the petitioner and has been meeting the children also. According to the statement of this PW atmosphere in the house of the petitioner was quite good and that the children have been living a very happy life in the house. He has stated that he visited the house of the petitioner in "Abudahbi" and stayed there for a period of 3 months. The children as well as respondent No. 1 were living there very happy life and that the petitioner has been taking them out for the purpose of recreation etc and has been taking them to various functions. He has further stated that he has been keeping his wife as well as children with him even non family stations such as \ Shinkiari. In cross examination he has admitted that the petitioner has written a letter to the respondent No. 1 that she should go away with her children but according lb this witness that writing was by way of fun and that the respondent No. 1 has told him that the petitioner has undertaken in writing the payment of maintenance amount of Rs. 1500/- just by way of fun. Fida Hussain has been produced as PW 3 who is a batman of the petitioner. He has stated that the' petitioner has been living with his wife as well as his children a very happy life and the spouses as well as their children has been participating in various functions. This witness has admitted in cross-examination that he was living in a servant quarter and used to go to the house of the petitioner only when he was summoned. The petitioner himself appeared as PW 4 and has also corroborated his version which is mainly to the effect that his treatment towards his wife as w'ell as his children used to be excellent and that he has never maltreated his wife or children and further that he has been taking his children for the purposes of recreation etc and has been giving best of education to the children. He has stated that he has purchased computer and other goods as gifts for his children. In support of his plea regarding family relations he has produced photographs ExA 1 to Ex.A 18. He has also produced computer certificate Ex. A 19 and A 20 and also custom documents mark A 1 to Ex. A 4. Has categorically denied that he has ever maltreated his wife and the children. Regarding document Ex. D 1 according to the petitioner, it was written just by way of fun. However, in the subsequent part of the statement he has stated that he has written Es.
D 1 under pressure of respondent No. 1 on my query. The petitioner has admitted before this court that during the course of proceedings pending in this court, he was married a virgin girl aged 27 years who was related to him as a distant cousin and that presently he is living in Rawalpindi with his second wife and that in case the children are given to him he shall take them to live with his mother aged 70 years and un-married sister who are presently living in his native village, in his house situated in Peshawar and that he will live with his second wife at Rawalpindi. The petitioner has further stated that after the retirement from the Army he is doing nothing these days. Learned counsel for the petitioner during the course of these proceedings has produced two video cassettes, on showing the participation of his wife in a reception held on 23.3.1987 by Pakistan Embassy in Abu Dhabi and other showing the factum of taking his family members at various recreational places in Abu Dhabi, Sharjah as well as at Al-Ain zoo. Two video cassettes have been marked as AW1 & AW2 and have been place on record of this case, as the learned counsel has no objection to the production and placing of the video cassette on the record as a part of evidence.
5. As against the above evidence produced by the petitioner before the Guardian Judge, the respondent No. 1 produced Zain-ud-Din as RW1 who has deposed that when he was in Islamabad on 7.Il.l989, he came to know that the petitioner had divorced the respondent No. 1 and that there was report got registered in Police Station Wah regarding the taking away of the children by respondent No. 1 the witness has produced a copy of the first information resort Ex. R2 and a copy of the affidavit Ex. R1. The respondent herself has appeared as PW.2 she has stated that after her marriage with the petitioner, his treatment with her and the minors has not been good and he has been beating her. She has also stated that the petitioner was not interested in the welfare of the minors and ultimately turned her out of his house alongwith minors after pronouncing talaq thrice.
Presently, she is teaching in PAF School, Islamabad. The minor daughters are studying in Model Girls High School, Islamabad whereas minor son is studying in PAF School, Islamabad. She is living in official residence provided by the school authorities wherein she is employed. She has stated that the children are getting very good brought up and education and she does not intend to remarry and wishes to live with the sole aim of brought up and education of her minor children. In cross-examination the witness has admitted that even when minors were living in the house of the petitioner, they were getting good examination results and that she has been living for a period of 3 years with the petitioner alongwith her minor children in Abudahbi where the children have been getting education in institutions run by Pakistan Embassy. She has also admitted that she has been living with the petitioner on those stations which are non family station i.e. Shankiari. She has stated that she is working as Grade-14 employee and that she does, not know as to whether the petitioner has taken a second wife although he was engaged in 1988, when he was living in Wah. Tarig. Hanif her brother has appeared as RW3 who has stated that the children are getting proper education and living with their mother who has been divorced by the petitioner and that the petitioner has failed to pay any maintenance to the minors. This witness is also living in Islamabad almost in the same Vicinity wherein respondent is living. During the course of proceedings before this Court, the progress reports have been produced by the learned counsel for the respondent No. I in order to know that the children are getting very good education, which have been marked as RW1-RW3, and have been placed on record without objection by the learned counsel for the petitioner.
Statements of the minors have also been recorded in this petition to know their choice.
6. After hearing of arguments and going through the evidence, learned Guardian Judge, Rawalpindi vide order dated 25.7.91 dismissed the application filed by the petitioner. This order was challenged in appeal filed by the petitioner which was dismissed by the learned Additional District Judge, Rawalpindi vide judgment and decree dated 1.2.1992, hance this writ petition by the father.
7. Mr. Bashir Ahmed Ansari, Advocate has appeared on behalf of the petitioner whereas Mr. M.S. Mehboob Advocate has appeared on behalf of the respondents.
8. In support of this petition, learned counsel for the petitioner has raised the following contentions:-
(i) That the petitioner being a natural guardian, is entitled to have absolute supervision over the minors which includes the right of physical custody inasmuch as there is no Injunction of Islam according to which the right of Hizanat is recognized and could be enforced through a Court of law in favour of the mother in view of provision of Articles 2-A and 227 of the Constitution of Islamic Republic of Pakistan 1973 which enjoin upon Courts of this country including this Court to decide the matter in issue in accord with Injunctions of Islam and that the right of Hizanat except in case of suckling child being not recognized by any Quranic verse of a confirmed Hadees, right of Hizanat recognised by Fiqah cannot be given effect to while deciding the custody of minor. In support of this contention learned counsel has placed reliance on cases of Mst. Zohra Begum vs. Latif Ahmed Munawar (PLD 1965 (W.P) Lahore 695) and Sultana Begum vs. Mir Afzal and others (PLD 1988 Kar.
252). Hence impugned order having been passed on the basis of principle of Hizanat are without a lawful authority.
(i) That the father being a natural guardian has an unquestionable right to get the custody of his minor children inasmuch as the presumption is that the welfare of the minors lies to the restoration of the custody to their father particularly when the minors are pown up girls and a son who is aged about 11 years. In support of his contention learned counsel has placed reliance on cases of Muhammad Bashir vs. Mst. Ghulam Fatima (PLD 1953 Lahore 73), Muhammad Sadiq vs. (Mrs) Sadiq Safoora (PLD 1963 (WP) Lah. 534).
(ii) That the two Courts below have relied upon the document Ex. D1 which goes against respondent No. 1 as in the said document there is a specific prohibition against the removal of the children and, therefore, the judgments rendered by the two Courts below are without a lawful authority as the same are based upon mis reading of evidence particularly Ex. D1.
(iii) That the two Courts below have rendered judgments, also relying upon the statement made by the minors although the said statements have no value while deciding the question of custody of minors as held in case of Mst. Aisha vs. Manzoor Hussain and another (PLD 1985 SC 436) at page 438.
(iv) That even as per provisions of Fiqa contained in Mulla's Mahommedan Law the elder girl being about 15 years age, and, hence, having attained puberty the younger being also quite grown-up girl and the son being more than 7 years of age, applying the principle of right of Hizanat, it is the petitioner, who is entitled to the custody of the minors and not the respondent No. 1 whose right of Hizanat has come to an end due to the ages of the minors.
(v) That even if the principle of welfare of the minors is adopted for the purpose of decision of the application under Section 25 of the Guardian and Wards Act, it is the petitioner who is entitled to the custody of the minors inasmuch as the evidence led by the respondent No. 1 to the effect that the petitioner has been maltreating her as well as children stands, falsified by her own statement, while appearing as RW3 wherein she has admitted that the parties have been living quite a happy life and also by the evidence produced by the petitioner which consist of natural witnesses, one of whom is batman of the petitioner whereas the other is brother in law of the petitioner and has been living with his family members even in Abudahbi. According to the learned counsel photographs produced by the petitioner before the lower Court in evidence as well as the video cassette produced before this Court clearly prove that the petitioner as well as the respondents have been living a very happy life and that he has never maltreated the respondent No. 1 or the minor children and separation of respondent No. 1 is nothing but a category of three categories of famous stubborness i.e. (stubborness of a king), (stubborness of a child), (stubborness of a woman. Hence, merely because the respondent No. 1 has got her marriage dissolved is not a circumstance as a result whereof it could be said that the petitioner was at fault and, hence, is not entitled to the custody of the minors. The petitioner being male Army Retired Officer enjoying a good health can well look after his grown up daughters as well as his son and wished to give them education in better institutions as compared to the respondent No. 1 who is a school teacher and has no male member to look after her as well as the minor children of the petitioner who are living there.
Regarding 'admissibility of video cassettes as pieces of evidence learned counsel has relied upon case of Islamic Republic of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs, Islamabad vs. Abdul Wali khan, M.N A. Former President of Defunct National Awami Party. (PLD 1976 S.C. 57) (U).
Elaborating his arguments learned counsel has contended that while dismissing the application filed by the petitioner, two Courts below have failed to follow the law declared by the superior courts for determination of such like questions and the impugned orders having not been passed on the basis of Injunctions of Islam, are without lawful authority and hence, are liable to struck down in exercise of constitutional jurisdiction of this Court which is also parental in nature.
1. As against the above arguments addressed by the learned counsel for the petitioner, learned counsel for the respondents has raised the following contentions:-
(i) That the two courts below enjoying a special jurisdiction under the provisions of Guardian and Wards Act read with West Pakistan Family Court Act 1964, have rendered concurrent finding of fact and have come to the conclusion that it is in the welfare of the minors to live in the custody of their mother. This Court is not a court of appeal while deciding the writ petition. Unless and until the impugned orders are found to be without jurisdiction or corum-non-judice, this court has no jurisdiction to interfere with passed by the two courts of exclusive jurisdiction. In support of his arguments, learned counsel has placed reliance on cases of Muhammad Hussain Munir and others, vs. Sikandar and others. (PLD 1974 SC 139) and Sakhawat Ali & another vs. Mst. Shui Khelat (PLD 1981 SC 454). Muhammad Zahoor & another, vs. Lai Muhammad & 2 others (1988 SCMR 322).
(ii) That in order to decide the application under Section 25 of the Guardian & Wards Act the learned Guardian Judge had the jurisdiction to determine as to whether welfare of the minor lies in restoration of the custody of the minors to the father.
(iii) In the case in hand it stand established on record that the petitioner has failed to pay maintenance to the minors in spite of there being an order for payment of maintenance having been passed by a court of competent jurisdiction liability under which order is being contested by the petitioner till today and the petitioner has brought a stepmother in his house as his second wife. It will amount to causing of constant torture to the minors if they are restored to the custody of the petitioner who are presently living quite a happy life with their mother who intends not to re marry and is giving good personal care and is sufficiently meeting the educational needs of the minors. Consequently the impugned orders passed by the learned Guardian Judge upheld in appeal do not suffer from any legal infirmity or from any jurisdictional defect and hence, are not liable to be interfered with. According to the learned counsel the impugned orders tested on the touch stone of law declared by the superior courts, do not require interference in exercise of writ jurisdiction of this court. In support of his contention, learned counsel has placed reliance on cases of Rahimullah Ch. Vs. Hilali Begum (1974 SCMR 305), Mst. Feroze Begum vs. It. Col. Muhammad Hussain. (1978 SCMR 299) Mst. Sughra Begum vs. Ashfaq Ahmed Butt (PLD 1981 Lahore 393), Tassadiq Hussain Shah vs. Mst. Surraya Begum (NLR 1980 SCJ 366) and Ghulam Ullah Memon, vs. Mst. Rahid Begum (1983 SCMR 793).
2. In reply to the arguments addressed by the learned counsel for the respondents, learned counsel for the petitioner has reiterated his arguments referred to in the earlier part of this judgment and has further argued that much reliance has been placed by the two courts below on the document Ex. D1 although this document clearly proves that it was the respondent No. 1 who wanted to separate and, hence, who was permitted to separate even while living in the petitioner's house and, therefore, separation of the respondent .No. 1 being without any reasonable case, she cannot keep the children away from the petitioner who is their natural guardian. He has further contended that the judgment, cited at bar by the learned counsel for the respondents are distinguishable inasmuch as the impugned orders passed by the court of special jurisdiction are hased upon misreading of evidence and at any rate this being the case .Vhcre his court also enjoy the parental jurisdiction, it is a fit case where interference should be made particularly when as per provisions of Quran and Sunnah it is the further who is entitled to the custody of the minors. It is contended that case of Mst. Feroze Begum' is distinguishable on the facts inasmuch as the mother in that case had left her village and has come to the city for the purposes of giving education to them and husband had taken second wife out of whom he had children and on its own fact it was held that in that case that it is not in the welfare of the minor to restore their custody to their father. In the case in hand, according to the learned counsel for the petitioner facts are entirely different and the mother is keeping the children away from the father without any just and legal cause for the sake of her own (stubborness) and not to look after interest and welfare of the minors, which she is not in a position to do. l2. On 10.5.1993 when the case was fixed for arguments, before starting of the arguments by the learned counsel for the parties, in pursuance of my order dated 9.5.1993, the minors appeared in the Court. They met the petitioner for about half an hour and thereafter before hearing the arguments I recorded their statements which are reproduced as understatement of Miss Sadaf Ejaz aged about 15 years R/O Saif International, Kalsoom Plaza, Blue Area Islamabad.
"I am studying in Islamabad Model College for Girls in 10th Class. During the time when I was living with my father, proper attention was not given to me. He did not take much care about her studies and welfare. He was not a loving, communicative and concerned father. Presently, I am living with my mother who is sufficiently catering for my personal as well as educational needs and that she will like to stay on with her mother. Due to this litigation regarding custody initiated by her father, she as well as the other two children are very much disturbed inasmuch as it is adversely reacting upon their studies and she will like if this litigation ends. Her mother has never been harsh and has never persuaded her not to meet her father. On Eid and other such occasions, her father does not come to see her nor sends any gift or cards. At any rate, for the present, she is more. Concerned with her studies, therefore, the controversy should come to an end so that she could get proper education. When she grown up she will definitcly. Be meeting her father. In the beginning treatment of my father used to be very good". .
Sd:- JUDGE R.O. & A.C.
10.5.1993.
"In the beginning, attitude of my father was good but subsequently he started neglecting us. I want to live with my mother who is sufficiently catering for my personal as well as educational needs. 1 am disturbed due to this litigation and am more concerned with the completion of my education and that I will be meeting my father as and when he so likes. At any rate, this litigation is adversely affecting me mentally and educationally, therefore, I may be allowed to live in the custody of my mother".
Sd:~ JUDGE R.O. & A.C.
10.5.1993.
13. I have considered the arguments addressed by the leamed counsel for the parties and have also gone through the record of the lower courts, material produced before this court, the statements made by the petitioner before this court with regard to the second marriage and the mode of keeping the minors if they are given to his custody as well as his failure to pay maintenance to them, the relevant provisions of Fiqa as well as the Quranic Injunctions and the judgments referred to by the learned counsel for the parties during the course of their arguments and other relevant case law on the subject statements of the minors have also been considered.
14. In order to decide the matter in issue, it will be advantageous to reproduce some of the relevant provisions of law as well as the resume of the various reported cases on the subject referred to above. Section 25 of the Guardian & Wards Act, Paragraph 5 of the Mulla's Muhammedan Law, Article 2- A and 227 of the Constitution of Islamic Republic of Pakistan 1973 are reproduced as under:- SECTION 25 OF THE GUARDIAN & WARDS ACT.
(1) If a ward leaves or is removed from the custody of a guardian of his person, the Court, if it is of opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make any order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian.
(2) For the purpose of arresting the ward, the Court may exercise the power conferred on a Magistrate of the first class by Section I0O of the Cr.P.C., 1898 (Act V of 1898).
(3) The residence of a ward against the will of his guardian with a person who is not guardian does not of itself terminate the guardianship.
PARAGRAPH 352 OF MULLA'S Muhammadon LAW.
The mother is entitled to the custody (Hizanat) of her male child until he has completed the age of 7 years and of her female child until he has attained puberty. The right continues though she is divorced by the father of the child, unless she marries a second husband in which case the custody belongs to the father.
ARTICLE 2-A AND 227 OF THE CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN.
ARTICLE 2-4 The principles and provisions set out. In the objective resolution reproduced in the annex or hereby made substantive part of the Constitution and shall have effect accordingly.
ARTICLE 227.
(1) All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran or Sunnah, in this part referred to as the Injunctions of Islam and no law shall be enacted which is repugnant to such injunction.
(2) Effect shall be given to the provision of (1) only in the manner provided in this part.
(3) Nothing in this part shall affect the personal laws of non-Muslim citizens or their status as citizens".
Question of custody of minors under S. 25 of the Act has been dealt with in various reported cases as follows In case of 'Muhammad Bashir' (PLD 1953 Lahore 73) it has been held that a minor though in actual custody of the mother shall be deemed to be in constructive custody of the father and, therefore, if the father is not allowed to see his minor children and minor is removed to another place, it shall be presumed that the minor has been removed from his custody. It has been further held that in case of mother enters into second marriage after getting divorce from her husband with a stranger who is not related within prohibited degree to the minor girls the mother shall lose her right of Hizanat. It is further held in this case that there is a presumption that the welfare of the minor lies in living with the person entitled to his custody under the personal law unless facts proved lead to a contrary inference.
In case of 'Muhammad Sadiq' vs (Mrs) Sadiq Safoora (PLD 1963 (W.P) Lahore 534 it has been held that father being natural guardian of the minor children until they attained majority not according to Muhammadan Law but according to Majority Act IX of 1875 and merely because Hizanat Nest, in mother, does not detract the right of the father to have a complete supervision and control of the minors and, therefore, in case of loss of control at the behest of the mother, the husband is entitled to apply under Section 25 of the Guardian and Wards Act for restoration of the custody of his minor children.
In case of Mst. Zohra Begum vs. Sh. Latif Ahmed Munawar (PLD 1965 (WP) Lah. 695) it has been held that the mother's right of Hizanant of minor children is not supported by any Quranic verse or Traditional Text on the point and that the Courts while deciding the question of custody are competent to come to their own conclusions. In this case, however, on facts it was held that where a minor son and a daughter remained in the custody of their mother for 9 years and were brought up by her, welfare of the minors lay in remaining in custody of their mother.
In case of Sultan Mina vs. Mst. Shahnaz Akhtar (PLD 1975 Lahore 194) where the question was as to whether the minor children living with the divorced mother should be restored to the father who has taken two wives subsequently and in spite of passing of the order for payment of maintenance has failed to pay the maintenance to the minors? Custody of the minor boy through above the age of 7 years was not handed over to the father as the minor was being well maintained and it was held that in case custody of the minor is restored to the father it will amount to forcing the minor to live with the father and step-mother . Who has exhibited hatred for him.
In case of Mst. Feroze Begum vs. Ltd. Col Muhammad Hussain (1978 SCMR 299) it has been held that overriding and paramount consideration while deciding question of custody of minor under Section 25 of the Guardian and Wards Act, is the welfare of the minor and inability of the mother to properly maintain the minor is not a ground for directing the restoration of his custody to the father who is responsible for maintenance of the minors even if they are living in the custody of their mother.
In case of Tassadaq Hussain Shah vs. Mst. Surraya Begum (NLR 1980 SCJ 366) where the father had married and has brought a step mother in the house custody of the minor child was refused to him on the ground that mother's lap is God's own cradle para No. 15 to 30 of the judgment which are reproduced as under:- "The sole criterion for decision as to who is entitled to have the custody of the minor, is the welfare of the minor and as held in Manjit Singh v. Bakhshish Singh AIR 1952 Punjab 129 the right of the father is liable to be defeated if is found that the application of the father is not bona fide. In this case the father who sought the custody of his minor son has separated from the mother of the boy, had remarried and had two children by the second wife. In the instant case before use also the appellant (father) had divorced the respondent, remarried and on the top of it has children from the second wife and also neglected to maintain the minor till today. His application as such for the custody of the minor cannot be said to be made in good faith.
16. We cannot for a moment, conceive that the step mother will be any substitute for the mother in the matter of rearing up the minor. We have no doubt in our mind that mother lap is God's own cradle for a child and as between the father and mother, other things. Being equal, a child in the circumstances of a given case should remain with the mother. We are not prepared to pay that the appellant is a fit person to have the custody of the minor. Of course when the mother is not the case here, the father is entitled to take the custody of the minor children. .
17. It is now settled law that decision of each case depends upon his circumstances. However, paramount the right of a father may that right, in our opinion is liable to be defeated where it is shown that it is better in the interest of the minor and for its welfare that it should remain where it is.
If a minor has for many years from the tender age, as in the present case, live with his mother and has been well cared for and during that time the minor father has shown lack of interest in the minor, these are in our opinion, circumstances of very great importance. They bear both upon the question of the interest and welfare of the minor and on the bona fide of the appellant.
18. The learned Judges in Bal Tara v. Mohanlal Lallbuhal and others AIR 1922 Bombay 405) remarked:- The petitioner has married again, and it is bovious that the boy, who was only 7 years old at the time this application was made will be much better off living with his mother then with his father.
No suggestion what ever has been made as to the character of the mother which would of good ground for taking the boy from her tender care and handing him over to the father who would be a perfect stranger to him. The step mother cannot be expected to be very much interested in his welfare."
19. In 'T. Sivasankara Mudaliar vs. Radhobal Ammal and another' (AIR 1939 Mad. 611) it was observed:- Where a father delivers his infant daughter to the custody of another and for over 15 years takes no interest in her but allow other to do what he as a father should do, it is evident that he is not entitled to exercise the rights of a father. He is certainly not a person in whose favour the Court should pass an order under section 25, Guardian and Wards Act. It is abundantly clear in this case that minor will be in far better custody if she remains with respondent No. 1."
'
20. Summarising the deductions that could be drawn from the above cases it will be seen that while all priority in preference is given to the father the mother's custody is being preferred more and more because of the warmth of affection, and equal to which the courts have been definite, could not be got elsewhere. The step-mother in the house hold of the father has been taken almost as a factor against the welfare of the minor. A father may render himself unfit for the custody of the minor children and without rendering his house unfit for the minor residence by bringing in step mother for him. The appellant in this case did not visit minor since a long time throughout minors life and he had not taken the slightest notice of him and so he has disentitled himself to have his custody.
21. Ch. Muhammad Taj, learned counsel for the appellant has cited 'Ali Akbar v. Mst. Kaniz Maryum (PLD 1956 Lah. 484), Mst. Munawar Jan vs. Master Muhammad Afsar Khan (PLD 1962 W.P. Lah. 142) in support of his contention that the welfare of the minor lies with the applicant and he in all circumstances is entitled to the custody of the minor and presumption is that welfare lies with the legal guardian, i.e. The father in the present case.
22. Ch. Sher Zaman, learned counsel for the respondent, as against this has cited 'Mst. Zohra Begum vs. Sh. Latif Ahmad Munawar (PLD 1965 Lahore 695) to show that it is the Judge who decides as to in whom the welfare of the minor lies in accordance with the circumstances of each case.
23. In 'Ali Akbar. Vs. Mst. Kaniz Maryyum (PLD 1956 Lah. 484), it was held:- If by Muhammaden Law a particular relation is entitled to the custody of a minor we should resume, in the absence of a proof to the contrary, that the welfare of the minor is delivered to that person. There is no conflict between the Muhammadan Law and Section 25 of the Guardian and Wards Act which^deals with the welfare of the minors. I have fully explained in Muhammad Bashir vs. Mst. Ghulam Fatima that all rules of Muhammaden Law governing custody of minors are rules relating to the welfare of the minor and are in all cases subject to the dominant consideration. They are rules which simply raised the presumption of welfare. It should be obvious that there cannot be any conflict between the right of custody under Muhammaden Law and Section 25 of the Guardian and Wards Act. It cannot possibly be assumed that Muhammaden Law grants the custody to a person the grant to whom of custody is not in the interest of minor. Any other interpretation of Section 25 of the Guardian and Wards Act would, as I have explained in the above mentioned case, lead to an anomaly.
It was further observed: It has to be presumed that the welfare of the minor lies with the father and there should be strong reasons for depriving the appellant of the custody of his child. I have only to consider whether any such reasons exist.
24. This clearly shows that the father for entitlement to the custody of the minor can loose such right if such circumstances of a given case show that welfare of the minor will not lie with the father. In the present case as stated earlier the father has neglected to look after the minor with a father eye since for 14 years and also cared not to maintain him and for that reasons he has disentitled himself to have custody of the minor. If the appellant puts him in a convent or some other good school the mother would not put any hindrance in the way of father.
25. In Mst. Munawar Jan Vs. Master Muhammad Afsar Khan (PLD 1962 W.P. Lahore 142) it has been observed that paramount consideration in the matter of the custody of a minor of tender year is in the interest of the child rather than the rights of the parents. Under Muhammaden law there is a presumption that welfare of the minor lies in living with the party entitled to the Hizanat but this presumption can be rebutted and if in a given case circumstances are brought out to justify depriving the part entitled to the custody under Muhammaden Law, an order can be made to that effect.
26. Apart from it, judicial decision primarily applied to the fact on which they are given. Such observation generally made on consideration of the peculiar facts of a particular case. If they are applied in discriminately to other cases, it is likely that it may result in mis-carriage of justice. A case is in fact an authority applicable to the facts of a particular case and not for any general purpose that may see to follow logical from it. Obviously it would not be safe to reply on general proposition of law decided in any individual case to form foundation of general principle because the observation in a judgment separated from the context would not support the isolated date in an other case. It would consequently be misreading to apply the inference drawn from certain facts and circumstances to other cases based on different facts and circumstances.
27. It, therefore, follow that law laid down in a case naturally only applies to the facts of that case and it cannot be said that such a law attains auther "city for every case of the nature.
28. In Mst. Zohra Begum Vs. Sh. Latif Muhammad Munawar (PLD 1965 Lahore 695) it has been observed:- Where there is no Quranic or Traditional text or an Ijma on a point of law and if there be a difference of view between Aimma and Faqihs, a Court may form its own opinion on a point of law.
It would therefore, be permissible for courts to differ from the rule of Hizanat stated in the text books on Muslim Law where there is no Quranic or Traditional Text on the point. Courts which have taken the place of Qazis can, therefore, come to their own conclusion by process of Ijtahad which according to Imam al Shaft included in the doctrine of Qiyas. Where the rule propounded in different text books on the subject of Hizanat is not uniform. It would be permissible for the courts to depart from the rule stated therein if on the facts of a given case, its application is against the welfare of the minors.
Where, therefore, in an application under section 25 of the Guardian and Wards Act 1890, it was found that the mother for nine years had reared and brought up her two minor children, a son and a daughter without any shortcoming and all these years the father had not only seen the children but had not contributed a single pie towards their maintenance, it was held, that it was in the welfare of the two children to remain in the custody of their mother.
30. If the minor is capable of making an intelligent performance the Courts may consider the preference alongwith the welfare of the minor. But before the Court gives effect to the personal inclination of a minor, it must be satisfied that the opinion is an intelligent opinion and in the interest of minors. The Courts, therefore, have been interrogating the minor almost in every case. In many cases, minor inclinations have been the deciding factor. In 'Mural Lai vs. Sarwati' (AIR 1925 Lahore 375) it was held that Mst. Rmon, who was merely of sixteen years of age, are not willing to live with Lala Murari Lai and they are in a position to exercise their discretion in this matter, they ought not to be forced to live under the guardianship of the appellant towards whom they have feelings of antipathy. Again in Mst. Janak Dulari vs. Mst. Ganga Dil (AIR 1931 Oudh 326) it was held that the step son whose custody was wanted by the step mother did not want her as a guardian for himself and in the circumstances of the case, step mother cannot be appointed as guardian".
In case of Sakhawat Ali and another vs. Mst. Shui Khelat (PLD 1981 SC 454), poverty of mother was held not to be ground for refusing the custody of her minor children.
In case of Mst. Sugfira Begum vs. Ashfaq Ahmed Butt (PLD Lahore 393), when a dispute arose with regard to the custody of minor son aged 7 years and minor daughter aged 9 years, it has been held that paramount consideration for decision of the question in the welfare of the minors and that the minors living in the custody of the mother for six years developing love and affection for her and their interest being properly looked after by mother by getting them admitted in good school and the minors not prepared to part with company of the mother rather categorically declining to go with the father mere fact that father of the minor was rich person and there was an agreement executed between the parties regarding custody of the'minors will not debar courts for holding that the welfare of the minor lies to live with their mother.
In case of Ghulam Ullha Memon vs. Mst. Rashi Begum (1983 SCMR 793) the minor girls after the death of their mother were living with their maternal grand mother. Father applied for restoration of the custody. It was established on record that treatment of the father with the mother of the minors was not congenial and that he had failed to pay any amount towards maintenance and upbringing of minor girls, it was held that the father who was living with step mother is not entitled to the restoration of the custody of the minor girls who were allowed to remain with maternal grandmother.
In case of Muhammad Noman Malik vs. Mst. Rukhsana Noman and 2 others (1983 CLC 2946) it was held that if mother's right of Hizanat is not established and even if all other things are equal, it is the mother who should have preference to the custody of the tender aged minors. It has further been held that even after the minors have crossed the age of Hizanat, welfare of the minor being, sole consideration for deciding the question of custody, any order passed by the Guardian Judge after taking into the consideration over all circumstances of the case could not be said to have been passed without jurisdiction or in excess of jurisdiction or otherwise illegal and improper and, hence, is not liable to be interfered with in exercise of writ jurisdiction.
In the case of Mst. Khalida Begum vs. Muhammad Altaf (1983 CLC 678) where the father had brought a step mother in the house and the question arose as to whether the minors should be restored to the custody of the father, in paragraph No. 11 to I6 of the judgment, their Lordship of the Supreme Court of A J K have held as under:
11. Another factor which tilts the balance in favour of the mother is that the respondent (husband) has got a step mother who is not expected to give so much love to the infant as is given by their mother. We cannot, for a moment, conceive that the step-mother of the respondent will be any substitute for the mother in the matter of rearing of the minors. Mother's lap 'is Cod's own cradle for a child and as between the father and the mother, other things being equal a child in the circumstances of a given case should remain with the mother". If a minor has for some years from the tender age lived with his mother and has been well cared for and during that time the minor's father has shown lack of interest in the minor these are in our opinion circumstances of very great importance. They bear the question of the interest and welfare of the minors and on the bona fide of the appellant. The crux of the matter is that only in the absence of the evidence to the contrary and not otherwise. It should be presumed that the welfare of the minor lies in such minors being handed over to a relation under Muhammadan Law entitled to the custody. The welfare of the minors is a dominant factor and such welfare does not necessarily lie in the custody of natural guardian.
In Mst. Zenab Bibi vs. Abdul Karim (1) it has been observed that the court passing an order appointing a guardian of a minor should not solely base his order upon who is entitled to be guardian under personal law of the minor but the court has also to consider the welfare of the minor.
Same view prevailed in Seeyali Veettil Abubacker v. Ovinakath Vayyila Purayil Mariyumma (2). It has been held in that case that a Muhammaden father as the lawful guardian of his minor children under his personal law is entitled to make an application under section 25; but the fact that he is a lawful guardian does not compel the court to pass an order in his favour. The Court can only make an order for return of the ward to the custody of the Guardian if it is for the welfare of the minor which is of primary importance.
In Zainab Bibi v. Feroze-ud-Din (3) was said by Mr. Justice B.Z. Kaikais, J. (as he then was) that while it requires a strong case to rebut the right of the father to custody, it is not an absolute right and if the father has been guilty of such conduct that in the opinion of the Court custody of the minor should not be granted to him; Muhammadan Law does not stand in the way.
The proposition that the father may disentitle himself to custody on account of his conduct is one to which hardly an exception can be taken and is well supported by authority. I may refer to 32 P W R 1917, A.I.R. 1937 Lahore 481, A.I.R. 1923 Lahore 283, A.I.R. 1939 Mad 611, and 1951 E.P. 338. Learned counsel for the respondent relies on A.I.R. 1928 Lah. 896, A.I.R. 1927 All. 358 and my own judgment in Muhammad Bashir vs. Mst. Ghulam Fatima. Once we accept the principle that it is the welfare of the minor that is the dominant consideration, it is a matter to be decided on particular circumstances of each case.
Case reported as Mst. Zohra Begum v. Sh. Latif Ahmad Munawar (1) is also in line with the above- cited authorities. It has been observed in that case:- "Where there is no Quranic or Traditional Text or an Ijma on a point of law, and if there be a difference of views between A' imma and Fiqahs a court may form its own opinion on a point of law. It would, therefore, be permissible for Courts to differ from the Rule of Hizanat stated in the text books of Muslim Law where there is no Quranic or traditional text on the point. Courts which have taken the place of Qazis can, therefore, come to their own conclusions by process of Ijtihad which, according to Imam Al-Shafi is included in the doctrine of Qiyas. Where the rule propounded in different textbooks on the subject of Hizanat is not uniformed it would be permissible for the courts to depart from the rules stated therein if, on the facts of a given case, its application is against the welfare of the minors.
Where, therefore, in an application under Section 25 of the Guardians and Wards Act 1890 it was found that the mother for 9 years had reared and brought up her two minor children a son and a daughter without any short comings and all these years the father had not only not seen the children but has not contributed a single pie towards their maintenance, it was held, that it was in the welfare of the two children to remain in the custody of their mother.
12. It would appear that welfare of the minors is the main consideration under the Guardian and Wards Act and Personal Laws have been subordinated to the welfare of the minors. This view also prevailed in a case decided by this court reported as Tassadaq Hussain Shah vs. Mst. Surraya Begum (2). It has been observed in that case:- "Under Section 25 of the Guardian and Wards Act emphasis is laid on the welfare of the minors.
Welfare of the minor, therefore, is the guiding factor in the matter of delivery of the custody. Under the Guardian and Wards Act, personal Laws have been subordinated to the welfare of the minors and a court may order the return of the Ward to the custody of the guardian only if it thinks it as necessary in the interest of minors'.
13. The learned counsel for the appellants also submitted that the above cited case was quoted before the learned Single Judge of High Court. This submission of the learned counsel is also owned by the Raja Lehrasab Khan, the learned counsel appearing on behalf of the respondent.
Unfortunately this case has no mention in the report under appeal. If the learned counsel are correct, then it may be said that the learned Judge has acted in violation of the provisions of Section 42-B of the Azad Jammu & Kashmir Interim Constitution Act, 1974, which is to the effect:- 'Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or in enunciated a principle of law, be binding on all other courts in Azad Jammu and Kashmir."
14. It is thus manifest and admits of no exceptions that all the subordinate courts including the High Court are bound to obey the dictum and pronouncement of this court. Violation of this constitutional requirement we are afraid, cannot be appreciated and at times it may create unhappy situation. We hope that in future the learned Judges in the High Court ensure that their orders do not run counter to the judgments of this court. The superior judiciary of a country is to protect the Constitution in letter and spirit.
15. It is also significant that the learned Judge in the High Court has also over looked the dictum of Mr. Justice Sardar Muhammad Sharif Khan, the learned Acting Chief Justice of the High Court, in a case entitled Mst. Surraya Begum vs. Syed Tassaq Hussain Shah earlier decided and relied upon by the learned Guardian Judge in his report. The Supreme Court in fact in the case mentioned in para l2 above, felt advise to agree with the pronouncement of Mr. Justice Sardar Muhammad Sharif Khan resulting in the dismissal of the appeal of Syed Tassadaq Hussain, the husband. This case, which also decides that the welfare of the minors does not necessarily lie in the custody of the natural guardian should not have escaped the attention of the learned Judge as the judgment of the learned Guardian Judge under appeal before him was mainly based on the judgment recorded by Mr. Justice Sardar Muhammad Sharif Khan. In these circumstances even in the absence of the dictum of this court if the judgment of the learned Single Judge of the High Court earlier recorded was not to be followed the appropriate method to resolve the issue was to refer the matter to the larger Bench of the court for decision.
16. The learned counsel for the respondent, Raja Lehrasap Khan has cited Ali Akbar v. Mst. Kaniz Maryam (1) Mst. Zahida Begum v. Muhammad Nazir Khan (2) and Juma Khan v. Mst. Gul Ferosha (3). In support of his argument that a minor male, after attaining the age of 7 years, must necessarily be given in the custody of the father and his welfare in all circumstances shall be presumed with him. We have gone through these citations.
There is nothing in any of the judgments cited by the learned counsel for the respondent which would negative the proposition that the father may not by his conduct, lose right of the custody of the children or that an application with ulterior object must, in all circumstances be allowed to succeed.
In the case of Mst. Feroze Begum vs. It. Col. Muhammad Hussain (1983 SCMR 606), it has been held that the mother is entitled to the custody of her children till expiry of the age of Hizanat and at any rate welfare of the minor is the paramount consideration and as in this case the mother had shifted from village to city for the sake of education of minors and intended not to re marry and had dedicated her life for the sake of minors and the father had contracted second marriage after divorcing mother of the minors and had children from the second wife, custody of the minors was refused to the father.
In case of Mst. Aisha vs. Manzoor Hussain and another (PLD 1984 S.C. 436) it has been held that the statement of the minors is not conclusive to determine his welfare and when the mother had remarried soon after leaving the husband's house and father had not married although a period of 6 years had passed and maternal grandmother holding custody of the minor not sending the minor to school for education though minor was of age and the father was living with his mother and sister, the minor was directed to be restored to the father.
In case of Ihsanur Rehman vs. Mst. Najma Parveen (PLD 1986 SC 14) it has been held that the Guardian Courts exercises parental jurisdiction and technicalities should not be allowed to frustrate substantial justice.
In case of Shoukat Pervez Butt vs. Mst. Nargis Sultana and another (PLD 1988 Lahore 290), it has been held that while determining the question of custody of the minor under Section 25 of the Guardian & Wards Act welfare of the minor is the determinative factor and is within the exclusive jurisdiction of the lower courts. The minor daughter was allowed to live with the real mother when the father had remarried and had children from the second wife. The order passed by the learned Guardian Judge was not interfered with in exercise of discretionary constitutional jurisdiction.
In case of Muhammad Ashraf vs Mst. Sakina and 2 others (1989 SCMR 1277), where the father had remarried and had children from second wife it was held by the learned Guardian Judge that he is not entitled to the custody of the minor children as welfare of the minor lies that they should remain with their real mother. The order was refused to be interfered with in the constitutional jurisdiction. The order passed by the High Court was challenged before the Hon'ble Supreme Court of Pakistan. Leave to appeal was refused and CPSLA was dismissed.
In case of Mst. Tahira vs. Additional District Judge, Rawalpindi and others (1990 S.C.M.R. 852), it has been held that when there is a competition between the mother and father and the father has re- married whereas the mother has not, the right of Hizanat of the mother is not effected even if there is an agreement in writing to the effect that he will not claim the custody of the minors.
In case of Mst. Saddan vs. Muhammad Nawaz and another (1991 CLC 1238) where the father had failed to maintain the minor children who were living in the custody of the maternal grandmother, father was refused custody of the minor due to his conduct and poverty of the maternal grandmother was held not to be a ground to grant custody of the minor to the father.
In case of Mst. Zahran vs. Umar Draz, etc. (NLR 1993 Civil 125), it has been held that the father is not entitled to the custody of the minor son aged 10 years when he has remarried inasmuch as it will not be in the welfare of the minor to uproot him from the mother's custody and to force him to live in a house where the step mother is residing. It has further been held in this case that although the preference of the minor is not conclusive, it is, however, one of the factors which can be taken into consideration by Court while deciding question of restoration of the minor particularly when the minor is of grown up age. Non-payment of maintenance to the minor has been considered as a ground to disentitle the father to claim custody of his minor son who is aged 10 years. Learned single Judge of this Court interfered with the order passed by the learned Guardian Judge where the custody of the minor had been granted to the father who had remarried and had failed to pay maintenance to his minor son. The writ petition was accepted and the application filed by the father under Section 25 of the Guardian and Wards Act was dismissed.
15. A close reading of various provisions as well as the case law referred to above shows that the following principles have been authoritatively laid down for deciding the question of restoration of custody under Section 25 of the Guardian and Wards Act:-
(i) That the father is the natural Guardian and, hence, has a right of control and supervision over his minor children even if they are living in actual custody of the mother.
(ii) That the father is bound to maintain the minors even if they are living with the mother against his wishes and his failure to maintain the minors particularly when there is an order for payment of maintenance passed a Court of competent jurisdiction disqualifies him to claim the custody of his minor children even if they have crossed the age of right of Hizanat of the mother.
(iii) The the mother even if poor, if looking after the children normally and giving them education and intends not to remarry after having been divorced by her husband, has a better entitlement to retain the custody of minor children as compared to the father who has taken second wife after divorcing the mother of the minors.
(iv) That the welfare of the minor is the paramount consideration for decision as to who should hold custody of the minor children and that the Court of learned Guardian Judge which is equivalent to the Court of Qazi is the best Judge to take a decision in exercise of his discretion as to who should hold the custody of the minor children and ordinarily no interference is possible in writ.
16. Admittedly the spouses were married in this case in the year 1976. They have been living in Abudahbi for a period of about 3 years. A document of separation Ex. D1 was executed between the parties with their free consent. Although there is no substantial evidence of giving beating to the respondent No. 1 by the petitioner yet the material on record clearly proves that there was rift between the spouses which stands established from document Ex. D1 and also by a visual examination of the two video cassettes produced by the petitioner during the couse of these proceedings. It appears that the spouses have been living together but the conduct of the petitioner towards his wife does not appear to be un exceptionable as claimed by the learned counsel for the petitioner. For example, while standing in reception line in Abudahbi in Pakistan Embassy it can be felt that the husband and wife are not living with the very happy union which usually stands reflected in such like functions. Similarly is the petition if the video cassette is seen regarding other occasions. The minors while appearing before this Court have also stated that their father was not communicative and was unconcerned regarding their health and education.
During the pendency of th< proceedings to get the custody of the minor children the petitioner had admittedl married a young virgin girl aged 27 years, although he himself is a father of tw grown up daughters, out of whom one is presently aged 15 years. He had failed t pay maintenance to the minor children in spite of the order passed by the lowe Courts. He rather challenged his liability to pay the maintenance by filing of appeal which appeal has been dismissed on 10.5.1993. On my asking the petitioner stated that he will challenge that order before this Court as and when the copy of the order is made available. He has admitted before me that he is doing nothing these days and is living in Rawalpindi. The petitioner has further stated before this Court during the cause of arguments on my query that he will keep his minor children in Peshawar where his old mother aged 70 years and unmarried sister will remain with the minor children. It clearly shows that if the minors are restored to the custody of the petitioner, they will be uprooted from the lap of their divorced mother, which has been held to be a cradle of "God Almighty" and will be put at the mercy of their step mother which will be a cause of constant torture for the minors which torture shall definitely adversely affect their personality as well as education. The children being grown up will not be in a position to digest the presence of a stranger woman sharing their father by living in the same premises or even living elsewhere. Restoration of their custody to the father will definitely put them in a situation which can be described by an Urdu proverb namely, "(Urdu)* or an English proverb namely, "rubbing the salt on wounds". Mother of the petitioner is aged 70 years old, who is supposed to live with the minors in case their custody is given to the father. Such an aged woman herself requires constant care. How can she look after the minors. Similarly an unmarried sister of the petitioner who is intended to be shifted from the village to Peshawar to live with the minors is also not in a position to look after the minors, as she herself needs protection and care. Even if it is assumed that the treatment of the petitioner has been very fine with the minors, the developments which have taken upto date have to be taken into consideration while deciding the question to retention/restoration of the custody of the minors. The petitioner who has taken second wife quite recently and has also failed to maintain the minors has got himself disentitled to ask for restoration for custody of the minors who are living with their mother who is working as a school teacher and is admittedly living with the minors who are getting education in very good educational institution of the Islamabad. Presently the minors are getting best of mother care, protection and best of education. The progress reports mark AW1 to AW3 which have been placed on record of this case clearly demonstrate that the minors are getting very good marks in their exames. Two of the minors are grow up girls. They need motherly care and guidance at this age of adolescence.
Uprooting them from the present set-up will definitely result in their complete breakage. Direction of restoration of their custody to the petitioner in view of the above circumstances seen in the light of law declared in various judgments referred to above cannot be said to be not in record with Injunction of Islam as argued by the learned counsel for the petitioner. Argument of the learned counsel for the petitioner to the effect that as per provisions of Articles 2-A and 227 of the Constitution of Islamic Republic of Pakistan 1973, this Court should not give effect to the provisions of Fiqha which confer a right of Hizanat upon the mother is also misconceived. There is no cavil with this proposition that in view of Articles 2-A & 227 of the Constitution of Islamic Republic of Pakistan 1973 as held in various judgments of their Lordships of the Supreme Court of Pakistan, while interpreting and enforcing the law in vacant areas the Islamic principle, of law are to be applied.
Case of Mst. Zahran Begum" cited by the counsel for the petitioner supports the view that in case there is no specific verse or nus regarding the right of Hizanat, Qazi is to formulate its own conclusion, taking into consideration the over all circumstances of the case. It is also not correct that there is no Hadees in favour of right of Hizanat of the mother. In case of Rahimullah Choudhury vs. Mrs. Sayeda Helali Begum and others (1974 SCMR 305) the report it has been held as under:- "The rules on Hizanat of children of tender age under Muslim law are based on the following tradition of the Holy Prophet (may peace be upon him): "A woman once applied to the Prophet, sying 'O prophet of God that is my son, the fruit of my womb, cherished in my bosom and suckled at my breast, and his father is desirous of taking him away from me into his own care; to which the Prophet replied, 'thus hast a right in the child prior to that of thy husband, so long as thou does not marry with a stranger'."
The tradition is qouted in Hedaya (2nd Edition, Vols I-IV, page 138) in Chapter XIV of Hizanant, or the care of infant children" and under section "in case of separation, the care of the infant children belongs to the wife".
"A mother is naturally not only more tender, but also better qualified to cherish a child during infancy, so that committing the care to her is of advantage to the child and Siddeek alluded to this, when he addressed Omar on a similar occasion, saying, 'the spittal of the mother is better for thy child than honey, O Omar' which was said at a time when separation had taken place between Omar and his wife the mother Asihe latter being then an infant at the breast spoken in the presence of many of the companions, none of whom contradicted him."
It is clear, therefore, that there is a tradition from Holy Prophet (may peace be upon him) which support the right of the Hizanat of the mother.
Even otherwise, I am of the view that due to the further development in the case particularly a second marriage of the petitioner with a young virgin girl of aged 27 years about 5 months earlier, it is difinitely in the welfare of the minors that their custody should remain with their mother. The minors who are of grown up age have also stated before me that they wanted to live with their mother who is very well catering their personal as well as educational needs. Their maternal- uncle also living in the same vicinity. He also could be of a great help to the minors as well as his sister.
The petitioner who has failed to discharge his liability should immediately pay the maintenance amount which has been directed to be paid to the minors by a Court of competent jurisdiction instead of contesting his liability to pay the maintenance to the minors. It is his boundent duty is accord with Injunctions of Islam to maintain his minor children even if they are living with their mother. Contribution towards maintenance of the minors by the petitioner will be a good gesture on his part.
Grievance of the petitioner regarding difficulty in meeting the minors can be brought to the notice of the learned guardian Judge by filing of an application, which shall be declined by the learned Guardian Judge in accord with the law declared in case of Ihsan ur Rehman vs. Mst. Najma Parveen (PLD 1986 SC 14) at page 28 of which report it has been held as under:- "Before parting with this judgment it needs to be observed as held by this Court in the case of Khizar Hayat Khan Tiwana vs. Mst. Zainab Bagum (2) the Family Court when acting as a Guardian Judge exercise parental jurisdiction and the technicalities is so far as it is possible should not be allowed to frustrate substantial justice. A second application wherever it is permissible and in accordance with the condition for filing such application before the Family Court (if there substantial change of circumstances and situation) is not barred under the relevant law. And the Family Court when acting as a Guardian Judge is empowered also (when it is necessary) to regulate the conduct or proceedings of any Guardian appointed or declared by it. This principle will apply to the regulation of the custody of the minors/wards in cases like the present one. The relief sought by the respondent regarding visit to the respondent or question of meeting between the minors and the parent can be regulated through an application to the Family Court."
Consequently, it stand established beyond doubt that the two courts below have exercised their jurisdiction quite in accordance with law and, therefore, the impugned orders are unexceptionable and cannot be said to have been passed illegally and without a lawful authority. The two learned Courts below having concurrently held in exercise of their conclusive jurisdiction after scanning of whole evidence that it is in the welfare of the minors to live with their mother, therefore, in exercise of constitutional jurisdiction of this court, no interference is possible in this case as held in cases of Muhammad Hussain Munir and others, vs. Sikandar and other (PLD 1974 SC 139), Muhammad Sharif and another vs. Muhammad Afzal Sohail etc. (PLD 1981 SC 246) and Muhammad Zahoor and another vs. Lai Muhammad and 2 others (1988 SCMR 322).
16. Resultantly, I see no force in this writ petition. The same is dismissed, with no order as to costs.